Cheung Hon Kwong v. The Queen
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CACC000812/1980 Appellant convicted 5 charges of blackmail and 3 charges of common assault. Sentence total of 4 years. All arising from same subject matter. Appeal against sentence allowed to extent of reducing sentence to 3 years to bring in line with sentence of other similar cases.
Coram: Li, J.A. Baber and Addison, JJ. in Court Date of Judgment: 5th March, 1981 ----------------- JUDGMENT ----------------- Li, J.A.:- 1. The appellant is convicted of the offences of 5 charges of blackmail and 3 charges of common assault. He originally applied for leave to appeal against conviction as well as leave to appeal against sentence. The leave to appeal against conviction was refused by a single judge; he was granted leave to appeal against sentence on the blackmail charges but his application for leave to appeal against sentence in respect of the common assault charges was refused. The applicant has not seen fit to renew his applications before this court. What concerns us now is his appeal against sentences in respect of the 5 counts of blackmail. 2. The appellant is a young man. He alleged that he had a debt due to him by a female for the sum of $1,400 which the female was unable to repay. 3. There was a dispute in the court below as to how the debt arose. The prosecution case was that the debt arose out of the amount owed to the appellant for the supply of dangerous drugs to this female. The appellant's case was that the money owed to him was a majong debt. However, the question as to how the female came to owe the appellant that sum of money is not of great significance. The offence charged is one of blackmail. 4. Having failed to recover $1,400 from the girl the appellant required her father to pay. He is a man over 50 and not in good health. In May and June 1980 the appellant made demands for payment threatening violence to him if the sum was not paid and on several occasions he beat him up. Certain sums were paid thereby reducing the debt and on the final demand for the balance outstanding the appellant threatened to chop off the man's arm or hand if the old man did not pay. The appellant was subsequently arrested, charged and convicted of five charges of blackmail for each of which he was sentenced to four years' imprisonment. In respect of the offences of common assault he was sentenced to 9 months' imprisonment. All the sentences were made to run concurrently. He now appeals against sentence saying that a 4 years' sentence is too excessive. 5. Learned counsel for the Crown very fairly drew our attention to no less than three cases. In the case of Leung Hoi v. The Queen[1973] H.K.L.R. 238 the appellant, being a policeman, demanded money with menaces; the menaces not being matter of violence but that unless the victim would pay up, he would not be allowed to carry on business in a certain vicinity. He was sentenced to imprisonment for 4 years and this Court held that this 4 years' sentence was not excessive despite the disparity of sentences imposed upon a co-accused of that appellant. Although no violence was used he obviously committed a breach of trust as a peace officer. In the case of Sit Sai-cheong in Criminal Appeal No. 908 of 1977 a person convicted on several counts of blackmail was awarded a sentence of 3½ years. In that case, this court held that the sentence appeared to be excessive. In that case no actual violence was used. This court reduced the sentence of 3½years to one of 2 years' imprisonment. In another case of Kong Loi v. The Queen in Criminal Appeal No. 168 of 1977 the appellant was convicted of 3 counts of blackmail admittedly of small sums. Again no violence was used. The appellant was treated as if he had a clear record. 6. In the present case the appellant is of a younger age. He has one previous conviction of wounding contrary to Section 19 of the Offences Against the Persons Ordinance for which he had been sentenced to the Detention Centre. Initially the appellant demanded the sum of $1,400 which after various payments was reduced to $275. He had been paid $1,125 after his first demand. Taking the cited cases as a guide and having regard to the overall circumstances of the case, we feel that a sentence of 4 years is excessive in this case. Violence to a limited degree was carried out and though it did not permanently incapacitate the complainant nevertheless it was an assault on an elderly man not in good health. We feel that the sentence should be reduced but not to the the same extent as to the case of Sit Sai-cheong and Kong Loi. We feel that a totality in sentence of 3 years would be appropriate. We do not propose to differentiate between the sentence on the 1st charge and the rest of the 4 charges of blackmail. 7. Accordingly, the appeal against sentence is allowed to the extent that the sentence of 4 years on each count of blackmail is set aside but in substitution therefore, there will be a sentence of imprisonment for 3 years on each charge of Blackmail and these sentences are to run concurrently.
Representation: Appellant in person C.A. White for Crown |